US President Joe Biden answers a question from a reporter after discussing coronavirus disease (COVID-19) vaccines and booster shots at the White House State Dining Room in Washington on the 24th. September 2021.
Evelyne Hockstein | Reuters
Led by Texas Gov. Greg Abbott, Republican-led states are already gearing up to challenge the legality of the Biden administration’s vaccine mandate for private companies even before the Labor Department has released the rules.
Last month, President Joe Biden asked the Occupational Safety and Health Administration, a small agency that monitors workplace safety for work, to write rules requiring private companies with 100 or more employees to vaccinate their staff. against Covid-19 or to test those that are not. at least once a week.
More than 130,000 businesses across the United States are gearing up for the new rules, which will apply to approximately two-thirds of the private sector workforce. OSHA told CNBC it delivered its proposal to the Office of Management and Budget on Tuesday evening.
“Every day we see more and more companies implementing immunization requirements, and more and more data shows that they are working. Companies and organizations that implement requirements are seeing their rates of immunization. vaccination increase on average from 20% or more to over 90%, ”he added. said when addressing the nation on Thursday. “Let’s be clear, immunization requirements shouldn’t be another issue that divides us.”
The rule is expected to come into effect shortly after the OMB completes its review. Because it is written under emergency procedures, OSHA can shorten some of the usual regulatory bureaucracy, such as a public comment period that would normally delay it by several months. OSHA will likely give companies time to comply with the new mandate before general application begins, according to Debbie Berkowitz, who served as OSHA’s chief of staff and senior policy advisor during the Obama administration.
Abbott hopes to anticipate the new rules, by issuing an executive order on Monday banning any entity from requiring vaccines for people who oppose on the basis of personal conscience, religious beliefs, or medical reasons, including recovery prior to Covid.
Texas-based Southwest Airlines and American Airlines said this week that they expected to be subject to federal vaccine warrants. As federal contractors, these carriers have said they are subject to the Biden administration’s vaccine rules that are stricter than upcoming OSHA rules.
The broad national mandate will almost certainly face more legal challenges. Almost every GOP attorney general in the United States signed a letter to the president last month, promising to use “all available legal options” to end the term, calling it “counterproductive and harmful.”
“The unique approach you have decreed makes it clear that you intend to use the OSH law as a pretext to impose an unprecedented and controversial national public health measure that only incidentally concerns the workplace, ”he added. Republican attorneys general wrote.
Florida Gov. Ron DeSantis said on Tuesday that the state legislature should pass a law preventing companies from sacking people who do not want to be vaccinated.
States, however, likely lack the legal capacity to challenge the rule, according to Georgetown University law professor David Vladeck.
“I don’t think it will be easy for a state agency to say that I represent the business world here,” Vladeck said. “The business community is perfectly capable of representing itself.
All signs point to a probable legal clash between the administration and companies. Trade groups have aligned their opposition to the mandate.
The United States Chamber of Commerce, in a September letter to the Secretary of Labor, also raised a long list of questions from companies, ranging from who will cover the cost of testing to how employers should treat workers who refuse both vaccination and testing.
The National Retail Federation said in a letter to Labor Secretary Marty Walsh Tuesday that it was concerned the requirements would worsen labor shortages as the holiday shopping season approaches. The organization suggested a 90-day implementation period to give businesses time to come into compliance.
The Retail Industry Leaders Association called the standard a “colossal undertaking” and warned that “testing capacity must be dramatically increased” to meet expected demand. The National Association of Manufacturers has said its members should not be burdened with “excessive compliance costs.”
The National Federation of Independent Businesses categorically opposes the rule, accusing the Biden administration of “requisitioning” companies to act as “instruments of coercion” against workers.
Under the law, the Secretary of Labor has the power to issue what is called a temporary emergency standard if he determines that workers “are in serious danger of exposure to substances or agents deemed toxic or physically harmful or to new dangers ”. The emergency standard is supposed to be replaced by a permanent rule after six months.
Republican Attorneys General argued in their September letter that employees in general are not in serious danger from Covid due to the level of public vaccination and the natural immunity of those who caught the virus and fell into disarray. restored since.
They also argued that OSHA can only regulate specific workplace hazards, not those typically found in the world at large. The National Retail Federation echoed this point of view in its letter.
“The agency cannot expect employers to control the behavior of their employees during their activities outside of work,” wrote the main lobbyist for the federation, David French.
“Workers face the danger of COVID-19 wherever they go,” French said. “They are endangered by COVID-19, because they are human beings who travel the world, not because they go to work.”
This is a point on which Republicans and Democrats largely disagree. The virus has infected nearly 45 million Americans, killing more than 721,000, according to data compiled by Johns Hopkins University.
“OSHA’s mandate is to protect workers from hazards and in this case, an infected worker, an unvaccinated worker, is a potential danger to other employees,” said Jordan Barab, deputy assistant secretary of the ‘OSHA under the Obama administration.
The rule will allow those who do not want to be vaccinated to opt for weekly tests instead. According to the Centers for Disease Control and Prevention, more than 65% of the American population has received at least one injection of Covid, while 56% are fully vaccinated.
However, many employers may decide that it is more cost effective to require vaccines upfront, according to David Michaels, former OSHA chief under the Obama administration and epidemiologist.
“A lot of us are hoping that most employers will do what United [Airlines] did and said all workers should get vaccinated unless they have a health problem or a strong religious belief, ”said Michaels, who is now a professor at George Washington University.
OSHA’s emergency standards have a mixed record in the courts. To survive legal scrutiny, the agency must not only demonstrate that there is a serious danger, but also that the rule is necessary to protect workers from that danger.
Demonstrating necessity is a high legal bar that could be vulnerable in court, according to Dorit Reiss, a public health regulatory expert at UC Hastings College of Law. Before the pandemic, the agency had not issued an emergency standard since 1983, when it sought to reduce workers’ exposure to asbestos.
Appeals from the U.S. Fifth Circuit Court of Appeals struck down the standard; OSHA’s ruling failed to demonstrate the rule was necessary to protect workers from harm. The agency has issued temporary emergency standards 10 times since 1970, and courts have stopped or completely canceled them four times, according to the Congressional Research Service. A fifth emergency rule was partially overturned by court order.
Republican attorneys general are now arguing that Biden’s vaccine and testing mandate is unnecessary, saying there are less intrusive ways to fight Covid. They also argue that the mandate does not make sense for companies whose employees are primarily home-based or working away from home.
Vladeck, however, said the vaccination or testing mandate clearly falls under the authority of OSHA, backed by a century of case law that gives the government the power to impose public health requirements.
“OSHA has very broad powers granted by Congress and its purpose is to protect the health and safety of every man and woman who works in the United States,” he said.
The White House rejected the opposition, arguing that Covid clearly presents a serious danger to workers and that federal law supersedes state law.
“Essentially, the law requires the Department of Labor to take action when it sees a serious risk to workers,” White House press secretary Jen Psaki said in September. “And certainly a pandemic that has killed more than 600,000 people is called [a] “Serious risk for workers. ”